Tuesday, November 13, 2012

I was finally getting around to responding to some comments to a post I wrote last week about filibuster reform...my responses were getting long, and so I decided to just make new posts out of them. I have at least a couple of these, maybe a bit more. The general point, to recall from last week, is that if we're to have reform it's terribly important to get it right. So here goes.

First up, Philosophical Ron asks about "Superbill" -- my proposal for basically a revved up reconciliation. The idea is that the majority party in the Senate could designate one bill a year as Superbill! -- or, less enthusiastically, the Leader's Bill. It would only need a simple majority to pass, and it could contain as many unrelated items as the party wanted, with (unlike reconciliation) no restriction on topic. On the other hand, it could be amended, also by simple majority...I'd probably want some limitation on that (number of amendments? Only germane amendments?), but basically if the minority had the votes for a poison pill amendment, tough luck to the majority. So Ron asks:

I fail to understand why your "Superbill" proposal ( 1 bill a year that can't be filibustered ) would lead to any kind of reform ore improvement whatever.

How is it defined? What restrictions will there be on saying X is the Superbill this week, then saying Y is the Superbill next week?

And how does it improve anything? All the lobbyist and insider pressure would then go into getting lobbyist-demanded provisions A, B, and C into the Superbill, and getting craven senators 1, 2, and 3 to say they won't vote for the Superbill unless A, B and C are in it.

First, I'm very open to moving around the details to make it work. While I have a pretty good working knowledge of Senate rules, there are many more expert than me; if this caught on as an idea, they would need to work out the details.

For that matter, I'm totally open to alternatives.

But the basic idea is that if the legitimate justification for supermajority obstacles in the Senate has to do with empowering intense minorities, then there also needs to be a way to empower intense majorities.

Moreover, part of the idea behind Superbill is that with that vehicle available, it's possible that the parties might more easily negotiate UC agreements for simple majority consideration of bills outside of the Superbill framework. That is, if Harry Reid can threaten that he would add a relatively minor bill to Superbill, Mitch McConnell might allow it to come to the floor as a stand-alone bill without needing 60, because he would know that it will pass anyway. In other words, not only would the Leader's Bill give intense majorities a way to push their priorities, but it would also remove the current incentive for the minority party to act as if it has intense preferences on absolutely everything.

As for the specific questions: you get one Superbill a year. It should be designed, I would think, with somewhat restrictive procedures. Perhaps once it's brought to the Senate floor, that's it: the majority could still amend it during consideration, but if it's defeated or pulled back then that's it for the calendar year. So you would want to be very careful about what you include. If, for example, Superbill was around during the 111th Congress, Democrats might have used it for a health care bill with a weak public option, but maybe not if that would have cost five votes -- and cap-and-trade might not have made it either, especially if the votes that would have lost would have been a different set than the public option votes.

On the second question: yes, everyone would definitely push for their items to be included in Superbill. I don't see a problem with that. On the one hand, there are always going to be must-pass bills of some sort which will attract provisions which interests want to get passed, but are unlikely to win as stand-alone bills. I don't see that Superbill changes that. On the other hand: of course there will be horsetrading around Superbill. That's pretty much a feature, not a bug.

I've been pushing Superbill as a (large part of a) logical solution to legislative filibusters for some time now, and I very much appreciate arguments against it -- but I've yet to be convinced that it wouldn't come closer to achieving the goal I think reformers should be after than any alternatives out there. That goal is ending the 60 vote Senate without turning the Senate into a flat-out majority party rule chamber, basically identical to a second House of Representatives. Of course, many would like to see exactly that, but it's a different argument. For those of us who do want to keep the Senate on it's more traditional path, but without the recent dysfunction, I'm increasingly convinced that Superbill! is a very promising solution.

16 comments:

Why is Superbill better than making filibusters the same as portrayed in Mr. Smith Goes to Washington? Hard to sustain! (40 filibustering senators have to remain present, filibusterer must speak continuously, only the final deliberation can be filibustered, etc.

The public understands this, a lot of people still think this is how it works, so it is politically simple.

Filibusters will be obvious (is someone speaking for hours? are Senators sleeping on cots? The press will report a filibuster as a filibuster.

The main objection is that it would effectively turn the Senate into a majority rule body which would be the end of the Republic.

Why would 40 Senators need to be present if one filibustering Senator has the floor? Couldn't they just show up, one at a time, and yield the floor to the next Senator who will then speak for two hours while the other 39 get some rest?

The "talking" filibuster only occurs when there *are* enough votes for cloture. It's really always been that way. Jeff Smith and Strom Thurmond held the floor when there were super-majorities to proceed. If they had a filibuster-proof minority on their side, they wouldn't need to talk their heads off.

Wouldn't there be a problem with the House? Assume Superbill gets passed in the Senate (and it doesn't contain the money provisions which have to originate in the House), suppose Boehner brings only half the bill to the floor of the House, then wants to go to conference with the Senate on that half.

That's fine; of course Superbill could come back either from conference, or as amended by the House, and return to the floor. What you couldn't do is junk that one and start over with another.

Of course, with divided government, legislative filibusters are often a minor issue anyway. Certainly that appears to be true now: there are probably no bills that can pass the House and Senate and get a presidential signature that can't get 60 votes in the Senate.

An idea for nominations reform: unlimited debate on nominations, but only for the first nominee submitted by the President for each vacancy. The second nominee would not be subject to the filibuster. That would allow Senators to object and be heard, but prevent them from holding offices vacant indefinitely. This would work for executive and judicial branch nominees.

Thanks very much for the shout-out, I guess I am fundamentally in the camp that thinks that the self-styled "greatest democrcy on earth" can handle a Senate that works by majority rule for most of its ordinary business, excepting of course the founder's various stipulations of supermajority in certain instances.

It sounds to me like a Superbill would just make minority interests - as distinct from the interests of the minority part - even easier to ignore by creating an unusual circumstance requiring intense party discipline to keep the Superbill in a place the majority can agree on. And, give that we now have a "everything needs sixty votes as long as the Democrats have a majority" norm this is probably the only place anything remotely controversial is going to get done - and I don't think putting everything in one bill is a good idea relative to just having majority rule. I think we have to face the fact that for better or worse the partisan Senate is already here and any potential reform to the filibuster is not going to change that.

I don't see how the Superbill idea is any better than the current situation of attaching onerous NNDA to re-appropriating funds for this year's vets' healthcare. It's not like we weren't going to spend the money, but if the bill wasn't passed, hospitals were going to shut down.

How effective would time limits on filibustering be? For example, every time a bill gets filibustered, it goes back to committee for at least two weeks -- but it takes one additional Senator to sustain the next filibuster.

For nominees, I think the problems tends to be in committees not bothering to hold hearings; perhaps a time limit could be set such that no action implies consent. (Thus moving a candidate from the subcommittee to the committee to the floor to appointed if no votes -- at least to explicitly procrastinate further -- are taken.)

The biggest problem from the committees, IMO, is overly onerous vetting requirements. I can live with it for judicial picks, what with the whole lifetime thing, but it's a problem for exec branch nominees.

Even for judicial candidates, no action in a year or more suggests that the Senate will never have time to do them all thoroughly, and should worry about withholding consent on only the most egregious cases.

But assuming changes are limited to executive nominees or regular bills, would an assumed-consent deadline be likely to help, or would it just slow things down further by requiring extra procedural votes?

The dysfunction of the Senate is born out of disciplined parties exploiting the gap between the rules and norms of the Senate. A Leadership bill does nothing to address either the discipline or the gap. My assumption (based on the PA General Assembly) is that objections to germaneness are subject to a vote of the chamber, which provide the majority party with an escape valve. Similarly, how would a finite list of amendments be provided? First-come-first-serve? Otherwise, it would most likely be decided by the majority leadership. Ending the filibuster (not for judicial nominations - though that process does need reform!) is the best way to end dysfunction and encourage the minority party to contribute. After all, there is still political value to bipartisanship, and divided government is more likely than not.